Will SB 1146 End LGBT Discrimination in California’s Religious Schools?

A new religious freedom battle has been brewing in California, but you probably haven’t heard of it yet. The Golden State’s Christian colleges and universities are up in arms over SB 1146, a Senate bill they argue would effectively end academic religious freedom altogether. Drowning under a wave of press releases, lobbying efforts, and social media campaigns is the intention behind Senator Ricardo Lara’s bill, which was to close a “loophole” that currently allows religious universities to get away with discriminating against students and staff based on their gender identity, gender expression, or sexual orientation.

A few questions jump to the fore with SB 1146: should religious universities be subject to state anti-discrimination laws and, if so, what penalties should be in place? If they are allowed exemptions from the law, should they have to publicly disclose information about these exemptions?

It’s a wonky subject, but bear with me. Here’s the backstory:

Religious universities are currently exempt from certain anti-discrimination provisions in California’s Equity in Higher Education Act, and they may request exemption from similar Title IX provisions that bar discrimination against LGBT students and staff. Since 2013, there has been a massive uptick in the number of schools across the country requesting and receiving Title IX exemptions. According to the Human Rights Campaign, LGBT students at religious universities are in danger of finding themselves “enrolled at schools that are granted the legal right to discriminate against them partway through their degree program.”

Already, students and staff members in California have reported being expelled or fired because of their sexual orientation or gender identity. “Currently these students and staff have no recourse,” Senator Lara said when he introduced the bill.

In its first draft, SB 1146 essentially contained three measures: 1) To limit the California exemptions to include only programs that explicitly prepare students for the ministry; 2) to require institutions receiving state and federal exemptions to anti-discrimination provisions to disclose and disseminate that information to current and prospective students; and 3) to provide LGBT students with private right of action against universities if they were discriminated against.

Since then, the bill has undergone several rounds of substantial revisions. To some degree that’s made it difficult to pin down exactly what effect it might have, but it’s also been hard to get a clear picture because the opposition’s rhetoric has consisted of broad reactionary strokes and doomsday predictions.

“The bill would essentially outlaw religious schools,” wrote Molly Scheer in The Federalist. It would make it “impossible for private schools to operate under any faith-based principles,” said “critics” in The Daily Signal. Chelsen Vicari, the Evangelical Program Director at the Institute on Religion & Democracy in Washington, D.C., told the Christian Science Monitor that SB 1146 would amount to the state “punishing” a private, Christian college “for simply having behavioral expectations for their students and staff, and in accordance with their faith-based teachings.”

Officials at Biola University, a private evangelical Christian school near Los Angeles, are some of the most outspoken critics of the bill. In a July 1 press statement, they stated that the latest version “unfairly makes only faith-based institutions explicitly subject” to California non-discrimination codes. Of course, that’s because non-faith-based institutions are already subject to the state and federal anti-discrimination laws.

“The targets of this bill are religious colleges and universities, but the true victims of this legislation would be the innocent students,” wrote California Assemblyman Matthew Harper early last month. Since the anti-discrimination requirements would be based on a university’s acceptance of state funds—educational subsidies known as CalGrants—Christian schools might choose to stop accepting these funds rather than submit to the law, Harper reasoned. He said approximately 60,000 students currently use them at faith-based schools in California.

Indeed, it would be tragic if a bill meant to protect LGBT students from discrimination instead unintentionally deprived thousands of low-income students from getting an education. But the bill does not need to be tied to CalGrants to serve its purpose. In fact, the first versions of the bill didn’t touch state funding at all, yet they still elicited similar responses from religious schools.

In any case, Senator Lara hasn’t ignored the criticism. The latest version of SB 1146 specifies that universities may still enforce norms like gender-segregated or married-only housing, as long as those policies aren’t applied differently to LGBT students or staff. It also states that universities can’t be forced to use their real property in violation of their religious beliefs (they won’t be required to hold same-sex weddings in a campus chapel, for example) and limits the recovery students can receive from a lawsuit to equitable relief (rather than damages).

These changes are meant to accommodate the moral and religious beliefs of the universities so long as they don’t infringe on the rights of LGBT students.

But, the universities have essentially argued, what if one of their core religious beliefs is that gender identity is inseparable from biological sex at birth? One gets the sense that no version would ever pass muster on the religious right.

And to make matters even more complicated, the latest version of SB 1146 is also opposed by the ACLU of California, which argues the law doesn’t go far enough to protect LGBT students, staff members and faculty from discrimination because it actually creates new loopholes.

Under the current wording, universities might not be able to explicitly say “gay students may not live with each other” because such a rule would affect only gay students and “gay” is an identity that falls under protection. But they could say something like “no student may participate in a same-sex relationship,” as this rule would apply to all students on campus. They could also use the property protection clause to deny trans students housing or prevent LGBT groups from meeting on campus, according to the ACLU. And the provision exempting schools that prepare students for the ministry would apply to the entire institution (even cleaning staff and maintenance workers)—not just the seminary program itself.

The language of the law is still confusing, and it doesn’t seem ready for a floor vote. The bill will go to the Assembly appropriations committee this week, and we will likely see more changes made then.